Law Coursework Study Cases

Only available on StudyMode
  • Topic: European Union, Citizenship of the European Union, Four Freedoms
  • Pages : 8 (2336 words )
  • Download(s) : 36
  • Published : November 17, 2012
Open Document
Text Preview
Advise Karen and Henry.

A)Karen

There are three acts concerning Karen which could affect her rights under EU law: firstly, she was denied access to a tender process for exhibition space; secondly, she was subject to a deportation order; and thirdly the Court action she brought in relation to these first two acts was held in Italian.

Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) provides that all nationals of a Member State are citizens of the European Union( See Kochenov & Plender ‘EU Citizenship: From an incipient form to an incipient substance? The discovery of the treat text’ [2012] EL Rev 369 ). Article 18 TFEU prohibits, in relation to all Treaty matters, discrimination on the grounds of nationality. Article 21 TFEU provides that these nationals have the “right to move and reside freely within the territory of the Member States”. Article 45 TFEU grants freedom of movement to “workers of the Member States” and prohibits discrimination on grounds of nationality. “Worker” is not defined in article 45 TFEU, or in secondary legislation. However, it has been interpreted widely by the ECJ( See Levin v. Staatssecretaris van Justitie (1982) and Steymann v. Staatsecretaris van Justitie (1988)) and by national courts( Mohammed Barry v Southwark London Borough Council (2008)). Article 45 TFEU applies to national laws which discriminate directly( Union Royale Belge des Societes de Football Association (ASBL) v Bosman (1995)) or indirectly( Allué v. Universita degli Studi di Venezia (1993)) against migrant workers on the grounds of their nationality or where the law has a restrictive effect and amounts to an obstacle to the free movement of workers.

Directive 2004/38 also provides that all EU citizens have the right to enter and remain in another Member State( Articles 5(1) and 6(1) Directive 2004/38). The Directive sets out the grounds on which Member States are permitted to restrict these rights, which are on the grounds of public policy, public security and public health( Chapter VI – Articles 27-33 Directive 2004/38).

The TFEU contains a number of provisions which require equal treatment in specific situations( e.g. Articles 18, 19 and 157 TFEU). Nevertheless the general principle of equal treatment is a fundamental right in EU law and the ECJ will seek to apply this wherever possible( Royal Scholten-Honig Holdings Ltd v. Intervention Board for Agricultural Produce (1978)).

Article 24 of Directive 2004/38 guarantees that EU citizens residing in another Member State will receive equal treatment( See Dawson et al. “ Enforcing the EU’s rights revolution: the case of equality” [2012] EHRLR 276). Article 67 TFEU provides for a single “area of freedom, security and justice” and provides that the EU must facilitate access to justice.

Free movement of goods is a fundamental freedom of the EU( Art. 26(2) TFEU) and article 34 TFEU prohibits Member States from implementing quantitative restrictions, or measures having an equivalent effect to quantitative restrictions (“MEQRs”). This prohibition applies to measures hindering imports, including those which “make importation more difficult or costly than the disposal of domestic production”( Art. 2(1) Directive 70/50) where domestic and imported products are treated differently – ‘distinctly applicable’ measures. The Cassis de Dijon case( Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (1979)), which concerned specifically free movement of goods, the ECJ set out principles to govern when national restrictions on fundamental rights may be permitted. The first principle, “the rule of reason”, allows indistinctly applicable laws where they are necessary to fulfil a mandatory requirement, so long as they are proportionate. The second principle of “mutual recognition” provides that products lawfully manufactured in one Member State should be marketable in another without restriction.

Under article 7(2) of Regulation...
tracking img